Final Report (September 1999) - Law Reform Commission of ...

REVIEW OF THE CRIMINAL

REVIEW OF THE CRIMINAL AND CIVIL JUSTICE SYSTEM Suitors’ Fund limitations 16.48 In practice the Suitors’ Fund does little to achieve this aim. The maximum amount that can be paid to a civil litigant is $2,000. This amount is very low and may bear no relation to the actual costs involved. For example, in unsuccessfully defending an appeal to the Full Court of the Supreme Court the costs payable to the appellant include at least a $265 filling fee, usually $855 assessed costs for settling the appeal book and so on, the fees for drawing the notice of appeal (between $880 to $4,050) and the appellant’s counsel fees. This is without even considering the respondent’s own costs. 153. The Suitors’ Fund Act 1964 (WA) should be amended so that, subject to judicial discretion, the unsuccessful respondent is entitled to have paid out of the Suitors’ Fund an amount equal to the court assessed party/party costs recovered by the appellant. Suitors’ Fund questions of law 16.49 It is also the case that litigants are only entitled to access the Suitors’ Fund if the appeal has been upheld on ‘a question of law’. This is an uncertain concept and it has been the subject of much judicial debate in the context of many other areas of law. For this reason alone the test should be changed. Further, the fairness of the test is open to doubt. Why should the respondent be any more liable if the original judge made an error of fact rather than an error of law? 154. The reference in section 10(1) of the Suitors’ Fund Act to ‘on a question of law’ should be deleted. The sole criterion for invoking the judicial discretion to award a Suitors’ Fund certificate should be the fact that the appeal succeeded. The Act should be further amended to provide that the discretion of the court is to be exercised having regard to the conduct of the respondent at the appeal stage and also in the court or courts below. Paying for the Suitors’ Fund 16.50 In order to reform the Suitors’ Fund so that it can be useful to litigants in the circumstances recommended, the collection base for the Suitors’ Fund will have to be expanded. 155. A component of the increased revenue raised as a result of Recommendations 8 and 9 relating to higher court filing fees should go to the Suitors’ Fund. 138

17 Local Courts The Local Court Equitable relief and damages 17.1 Of all the courts in Western Australia exercising a civil jurisdiction, the Local Court should be the most user-friendly. The Small Disputes Division of the Local Court reportedly has been successful in enabling parties to resolve disputes or to have them adjudicated quickly, at minimal cost. Because the Small Disputes procedures are a relatively recent innovation, parties apparently understand the process and feel it accords natural justice. However, the Local Court’s General Division, in which the majority of matters are commenced, has not been as successful. Although magistrates have done much in recent years to reduce delays and have achieved a great deal, existing Local Court procedure is antiquated, open to abuse and not useful in achieving the same standards as the Small Disputes Division. As the existing Small Disputes Division procedures work well, our recommendations in this Chapter are directed to the reform of what is now the General Division procedure of the Local Court. (In Chapter 33 we recommend that the Small Disputes Division becomes part of a Western Australian Civil and Administrative Tribunal.) 17.2 The Government is currently considering the jurisdiction of the Local Court in the context of recommendations made by this LawReformCommission in 1988. (See Chapter 2.) However, it is not clear whether magistrates in the Local Court will be given power, within the limit of the monetary jurisdiction, to grant equitable relief, nor whether the ‘Minor Claims Division’ will include claims for damages. We recommend in Chapter 16 that if the only reason an action is brought in the Supreme Court is because some equitable or other relief is sought which the lower court is not able to grant, the lower court scales of costs should apply. (Recommendation 119.) We also believe the jurisdiction of the Local Court should be expanded. 139